Doll Construction, LLC v. AMCO Insurance Company, et al

Filing 41

MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED THAT: The Findings and Recommendation of the magistrate judge, Filing No. 32 , with reference to Filing Nos. 11 and 16 are granted in all respects with the exception of the rulings on the motion to dismiss that relate to Chastain Otis, Inc. The objection to the findings and recommendation, Filing No. 33 , is granted. The plaintiff's motion to amend, Filing No. 37 , is granted, and the plaintiff shall immediately file his amend ed complaint. The order of the magistrate judge, Filing No. 36 , denying the motion for leave to file an amended complaint is overruled. The motion to dismiss, Filing No. 9 , is denied as set forth herein. Ordered by Senior Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DOLL CONSTRUCTION, LLC, a Nebraska
Limited Liability Company;
8:15CV68
Plaintiff,
vs.

MEMORANDUM AND ORDER

AMCO INSURANCE COMPANY, an Iowa
Corporation; UNITED FIRE AND
CASUALTY INSURANCE COMPANY, an
Iowa Corporation; BLUE CROSS AND
BLUE SHIELD OF NEBRASKA, a
Nebraska Corporation; and CHASTAIN
OTIS, INC., a Nebraska Corporation;
Defendants.

This matter is before the Court on plaintiff’s objections, Filing No. 33, to the
findings and recommendation of the magistrate judge, Filing No. 32. The magistrate
judge addressed a number of issues in his findings, but plaintiff objects only to those
findings concerning defendant Chastain Otis, Inc.

Following the findings and

recommendation, the plaintiff filed a motion for leave to amend its complaint and
attached an amended complaint, Filing No. 35.

The magistrate judge denied this

motion on the basis that plaintiff: failed to articulate that he had conferred with counsel
and whether the motion was unopposed; failed to file a brief in support of his motion;
and failed to delineate which parts of his complaint he was amending. Filing No. 36.
Thereafter, the plaintiff filed a motion to amend his complaint with both a brief and a
reply brief in support.

Filing Nos. 38 and 40.

The defendant Chastain Otis, Inc.

opposes the amendment to the complaint. Filing No. 39.

This case arises from an accident that occurred on March 10, 2013, when an
employee of Doll’s subcontractor, Down & Dirty, LLC (DDL), struck a parking garage
arm and damaged certain parking gates at BCBS’s premises at 1919 Aksarben Drive,
Omaha, Nebraska. Doll and BCBS contracted for Doll to remove snow and ice from
BCBS’s office located in Omaha, Nebraska. See Filing No. 1-1 - Complaint ¶ 12. Doll
subcontracted with DDL to have DDL perform the snow and ice removal services
required under the BCBS contract. Id. ¶¶ 14-15. From April 15, 2012, to April 15, 2013,
AMCO insured Doll under a policy of Commercial General Liability issued through
Chastain.

Id. ¶ 10.

The policy provided coverage to Doll’s contractors and

subcontractors. Id. ¶ 11. Chastain Otis, Inc. served as plaintiff’s insurance agent and
allegedly assisted with the claim in this case.
Under the Federal Rules, a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
rules require a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed. R. Civ. P.
8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive,
a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff's obligation to provide the
grounds for his entitlement to relief necessitates that the complaint contain “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.

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The factual allegations of a complaint are assumed true and construed in favor of
the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable
and ‘that a recovery is very remote and unlikely.’” Id. (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). “On the assumption that all the allegations in the complaint are
true (even if doubtful in fact),” the allegations in the complaint must “raise a right to relief
above the speculative level.”

Twombly, 550 U.S. at 555-56.

In other words, the

complaint must plead “enough facts to state a claim for relief that is plausible on its
face.” Id. at 547. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that the

plausibility standard does not require a probability, but asks for more than a sheer
possibility that a defendant has acted unlawfully.).
Twombly is based on the principles that (1) the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions
and (2) only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. at 678-79. Determining whether a complaint states a plausible claim for
relief is “a context-specific task” that requires the court “to draw on its judicial
experience and common sense.” Id. at 679. Accordingly, under Twombly, a court
considering a motion to dismiss may begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth. Id. Although
legal conclusions “can provide the framework of a complaint, they must be supported by
factual allegations.” Id. When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief. Id.
Thus, the court must find “enough factual matter (taken as true) to suggest” that
“discovery will reveal evidence” of the elements of the claim. Twombly, 550 U.S. at 558,
556; Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005) (explaining that something
beyond a faint hope that the discovery process might lead eventually to some plausible
cause of action must be alleged). When the allegations in a complaint, however true,
could not raise a claim of entitlement to relief, the complaint should be dismissed for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). Twombly, 550 U.S. at 558; Iqbal,
556 U.S. at 679.
The Court first notes that plaintiff objected to none of the other issues determined
by the magistrate judge.

The Court carefully reviewed the findings and

recommendations with regard to all other issues, and finds the magistrate judge is
correct as a matter of fact and law. Accordingly, the Court will adopt those findings and
recommendations.
The Court now moves to the denial of plaintiff’s motion to amend. The Court
notes that in its amended complaint, plaintiff addressed the concerns of the magistrate
judge set forth in the findings and recommendation. In particular, the magistrate judge
noted that the allegations against Chastain Otis, Inc. were conclusory in nature and
unsupported by any facts. In the amended complaint, however, the Court notes that the
plaintiff has added specific facts to address the deficiencies noted by the magistrate
judge. The plaintiff has specifically alleged conclusions of law as to lack of fair dealing
and good faith by Chastain Otis, Inc., and has supported the allegations with dates and
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times and written comments. As a result, this Court is going to permit the plaintiff to
immediately file his amended complaint. However, the defendants may thereafter plead
as they think appropriate.
THEREFORE, IT IS ORDERED THAT:
1. The Findings and Recommendation of the magistrate judge, Filing No. 32,
with reference to Filing Nos. 11 and 16 are granted in all respects with the exception of
the rulings on the motion to dismiss that relate to Chastain Otis, Inc.
2. The objection to the findings and recommendation, Filing No. 33, is granted.
3. The plaintiff’s motion to amend, Filing No. 37, is granted, and the plaintiff shall
immediately file his amended complaint.
4. The order of the magistrate judge, Filing No. 36, denying the motion for leave
to file an amended complaint is overruled.
5. The motion to dismiss, Filing No. 9, is denied as set forth herein.

Dated this 12th day of June, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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